RULING
I have heard what the Applicant’s counsel has told the court and also the sentiments of the prosecutor, I have carefully read the Notice of Motion dated 14th December,2024, the Supporting Affidavit and the annexures.
It is not disputed that the minor is aged 12 years meaning that his criminal culpability is shielded by the law (see section 221 of the Children’s Act CAP 141 LAWS OF KENYA).
In the first place he should not have been subjected to the criminal justice system, the error began from the office of the Director of Public Prosecutions when they recommended and approved the charges against the minor. The trial court also fell into an error for failing to take corrective measures when it found that the minor was aged 12 years.
For interest of justice and for the best interest of the minor I make the following orders;
1. The trial court proceedings MCCR E2152/2024 and the eventual sentence imposed by the lower court is hereby set aside.
2. The child is 12 years, he be treated as a child in need of care and protection.
3. The minor be released to the arresting police station where the in charge shall team up with the children’s officer in that area and move a children’s court appropriately, where appropriate proceedings shall be taken and appropriate orders sought for the best interest of the child, pursuant to the provisions of section 145 and 150 of the children’s Act CAP 141 LAWS OF KENYA.
Dated, signed and delivered in open court at Kakamega this 17th Day of December,2024.
S.N.MBUNGI
JUDGE
In the presence of :
Mr Edaki advocate for the applicant.
Court prosecutor-Mbonzo
Court Assistant-Elizabeth Angong’a